Pour-over wills are an essential part of creating an estate plan for those that choose to use a living trust. A pour-over will can act as a backup to the living trust, ensuring that any assets not in the trust are moved there after you pass. An estate plan is meant to determine what happens to your assets once you’re no longer living. With a living trust, the trustee will distribute the assets to your beneficiaries and avoid the probate process. This form of estate planning offers privacy because without probate, the passing of assets will not be on public record. Having a pour-over will is essential if there are any mistakes or oversights with the assets in the trust. The pour-over will ensures you have a backup plan for assets that weren’t outlined in the trust.
What Is a Living Trust?
Let’s begin by identifying what a living trust is and its connection to the pour-over will. Living trusts, also known as revocable trusts, can be canceled or changed by the trust’s creator (trustor) at any time. The trustor maintains control over assets regardless of taxation and can change beneficiaries when they want to. They can also undo the entire trust in the case that they change their mind. Many people debate revocable trusts vs. irrevocable trusts, which are permanent once signed, and choose revocable trusts because of their flexibility. Living trusts essentially place all of your assets into a trust and allows you to continue using, spending, and controlling them.
Once you pass, the trustee will distribute the assets to the beneficiaries you have named in the trust. Living trusts avoid the probate process because assets go directly to the beneficiaries without any court proceedings or formal processes needed. Pour-over wills are so crucial to living trusts because they make sure any assets that were overlooked or left out of your trust go directly into it once you’ve passed. They act as a safety net so that none of your assets go through probate, but instead directly to your trust and beneficiaries.
Benefits of Living Trusts
As mentioned above, there are revocable trusts (living trusts) and irrevocable trusts. Many people choose revocable trusts because of their flexibility and ease. Trustors can change beneficiaries and other important assets whenever they please. In addition, the trustee is appointed to take care of the trust when the trustor can no longer manage their own assets or when the trustor passes away. Having someone you trust as your trustee can make the whole process less stressful because you know everything will be taken care of as you wish. Living trusts are great for those looking to maintain control over their trust, assets, and estate. Here are a few more benefits to choosing a living trust:
- Flexibility to make changes whenever you need.
- Maintain privacy surrounding your estate and property transfers.
- Unlikely to be challenged in court.
- Maintain control over assets after mental incapacitation or death.
- Assets won’t go through probate court.
- No personal financial details will be exposed to the public.
What Is a Pour-Over Will?
Now that you have a good idea of what a living trust is, let’s discuss pour-over wills. They are an essential part of creating an estate plan when you choose to use a living trust to take care of your assets after death. Pour-over wills are legal documents that state that any assets that have not been funded into your living trust should go there after you die. This essentially means that your trust is the beneficiary of any property it doesn’t already hold. These properties or assets that have not been placed in your living trust will be funneled through it after your death so that they don’t pass directly to a living beneficiary through other means.
It can be difficult to make sure all of your assets are placed in your living trust before you die. You may forget to move something or run out of time before everything is there. The pour-over will acts as a backup to your living trust so that any property or assets not already in your living trust will be moved there after you pass. Pour-over wills differ from regular wills because they exist only in conjunction with your living trust. Typical wills handle your entire estate, which may be fine for some situations. But, if you’d rather keep control of your assets, then a revocable trust is a good choice for you.
Pour-Over Will Protocol
Since pour-over wills are their own kind of will and operate in conjunction with a living trust, their protocols differ from a typical will. Revocable trusts help avoid probate, which can be time-consuming and expensive, not to mention available on public record. A pour-over will ensures that all property is transferred to the trust and then distributed to the trust beneficiaries. The goal of having a living trust and subsequent pour-over will is to have all assets distributed under the trust document’s terms. This type of estate planning is simple because there is only one document needed, the trust. It takes care of anything that might have been forgotten or overlooked in an uncomplicated way. Here is the basic protocol of a revocable trust and pour-over will:
- The executor handles the transferring of any assets to the living trust.
- Any assets that pass under the terms of the will must be moved, usually only minor things of value that have been left out.
- In some cases, the estate may qualify for special “small estate” probate procedures, which are quicker and easier than normal probate procedures.
- Once assets are in the trust, the trustee takes over from the executor.
- The trustee has control over trust assets and must distribute them by following the terms of the trust document.
- The trust may have instructions to distribute everything to the beneficiaries as soon as possible.
- If assets are left to young adults or children, the trust might have more detailed instructions on how to proceed. Sometimes the money may be left in the trust until a beneficiary reaches a certain age.
- The work of a trustee is not always done right away, but the responsibilities could continue for years after, depending on the circumstances.
Pour-Over Will Benefits
The pour-over will protocol exists hand-in-hand with the living trust. Having a pour-over will is beneficial because it ensures that all of the deceased person’s assets are taken care of in a straightforward way after their death. Beneficiaries receive what has been left to them through the living trust, with the help of the trustee, who is usually a close friend or trusted person. The pour-over will acts as a backup plan so that every asset is taken care of after the person passes, offering peace of mind for their family and loved ones. When in doubt, consulting with an estate planning attorney can take any stress away from writing your will or setting up a trust.Read More
A large part of creating your estate plan consists of knowing what will happen in the probate process. Probate is the legal process of dealing with a deceased person’s assets and debt, including the court that oversees it and the assets’ actual handling. The purpose of probate is to make sure a person’s will is honored and any liabilities, like final bills or debt, are taken care of. The process includes locating and valuing their assets to distribute the remainder of the estate to the rightful beneficiaries. It’s crucial to know what will happen in the probate process so that you can plan accordingly, making sure that your heirs know what your final wishes are. Here’s a breakdown of what’s included in the probate process:
- Authenticating the last will and testament
- Appointing the executor (sometimes called a personal representative or administrator)
- Posting bond
- Locating the assets
- Determining date of death values
- Identifying and notifying creditors
- Paying any debts
- Preparing and filing tax returns
- Distributing the estate
- Dealing with “intestate” estates
What Is Probate?
As mentioned above, probate is the legal process of dealing with a deceased person’s assets and debts. It is a court-supervised process that includes everything from authenticating the last will and testament to filing tax returns to distributing the estate. It’s important to know which assets go through probate so that you can properly plan in your will. If you have any minor changes to your will, such as changing the beneficiary of a gift, you can add a will codicil. Otherwise, significant life changes necessitate a new will to avoid any confusion. The probate process itself varies by state because specific laws are in place to determine what’s required to probate an estate. It’s always a great idea to work with an experienced estate planning attorney who can help you with the specific details of your will and assets.
Which Assets Go Through Probate?
It might be overwhelming to consider creating your estate plan, including writing a will, establishing legal directives, reviewing your beneficiaries, researching your state’s estate tax laws, and more. One thing that will help make the process a lot easier is identifying which assets will go through probate. That way, you can take your time deciding who you’d like your major assets to go to once you’re gone, and you can value any items that might be hard to quantify. The deceased’s attorney or representative must list all probate assets with their values, then file the list with the probate court. Some assets, such as bank accounts or property, will be easy to value. While others, like jewelry or antiques, might require an appraisal. Listed below are the assets that you can count on to go through probate:
- Real estate, vehicles, and other titled assets that are owned solely by the deceased person.
- A share of property owned as “tenants in common” with someone else.
- Personal possessions such as household items, including clothing, jewelry, and collections.
What Happens In the Probate Process?
Now that you know what the probate process is and which assets are likely to go through probate, let’s discuss what happens in the probate process itself. Listed below are the steps in the probate process you are likely to encounter if a loved one or relative dies.
Authenticating the Will
Whoever has the deceased person’s will should file it with the probate court as soon as they can. It is sometimes necessary to file the death certificate as well. The probate judge will confirm the validity of the will, sometimes involving a court hearing. Notice of this hearing will be given to all beneficiaries and heirs.
Appointing the Executor
At the same hearing, the judge will appoint an executor who will oversee the probate process and settle the estate. Typically this person is already assigned in the will. They will receive documentation that allows them to act and enter into transactions on behalf of the estate.
The rules regarding posting bonds vary from state to state. Bonds act as an insurance policy that will kick in to reimburse the estate in case the executor commits an error that financially damages the estate or its beneficiaries. Some wills may include provisions noting that this isn’t necessary.
Locating the Assets
The first task of the executor is to take possession of all the decedent’s assets to protect them during the probate process. Sometimes this includes finding hidden assets through tax returns and other documents. The executor can either take control of the assets or ensure they’re in a safe location.
Determining Date of Death Values
This part of the probate process involves determining the date of death values for the assets, which is usually done through account statements and appraisals. In some states, the court will appoint an appraiser, otherwise, the executor can choose someone. They might have to submit a report to the court detailing everything the decedent owned along with its values.
Identifying and Notifying Creditors
All of the decedent’s creditors need to be notified of the death. Some states may require the executor to publish a death notice in the paper to alert unknown creditors. The creditors will then have a limited amount of time to make claims against the estate for money owed. These claims can be rejected if the executor has reason to believe they’re invalid.
In this step of the probate process, valid creditor claims are paid. Estate funds are used to pay any debts left after death and final bills.
Filing Tax Returns
Income and estate taxes need to be filed for the year the decedent died. The terms surrounding estate taxes vary, so the executor will need to determine if the estate is liable for estate taxes. They are usually due within nine months of the decedent’s death.
Distributing the Estate
The final step is to distribute what is left of the decedent’s assets to the beneficiaries who are named in the will. This probate process step typically involves getting the court’s permission, which will include the executor submitting records of all the financial transactions they’ve made throughout the whole probate process. When the will involves bequests to minors, the executor will create trusts to accept possession of these assets because children cannot own their own property.
Dealing with “Intestate” Estates
Intestate estates refer to those where the decedent did not leave a valid will. In these cases, the decedent’s property will go to the closest relatives. This order is typically determined by state law.
Understanding the Probate Process
If you understand the probate process, it will be much easier to create your estate plan and ensure all of your wishes are outlined in your will. When there is a detailed estate plan, the executor’s work is made easier, and beneficiaries don’t have to worry about arguments arising over certain assets. Of course, it is always helpful to consult with an estate planning attorney if you have any questions or concerns about the probate process.Read More
Probate is a legal process that involves a person’s assets after they die. If you have a detailed estate plan, including a last will and testament, what happens to your assets should be pretty straightforward for your beneficiaries. If not, or if there are arguments surrounding the will or beneficiaries, a probate court could be involved to settle these disputes. Some assets will be spared from probate, so it’s essential first to identify which assets will be subject to probate. This can help you create an accurate estate plan and settle any disputes prematurely. This article will cover:
- What is probate?
- What is non-probate property?
- Which assets go through probate?
- What does the probate process look like?
What Is Probate?
Probate is the legal process of dealing with a deceased person’s assets and debt, the court that oversees it, and the assets’ actual handling. The purpose of the probate process is to ensure wills are honored and any post mortem liabilities are taken care of. Paying debt can sometimes cut into the overall estate and take away from beneficiaries, depending on the value of assets, the number of beneficiaries, and the debt amount. Hiring a probate lawyer can help with any issues related to the will or beneficiaries, especially if you need to go to probate court to settle any disputes. Your property will be gathered and inventoried, any debts paid, and everything leftover will be divided among your heirs. Probate ends when all debt and taxes are paid and assets distributed.
What Is Non-Probate Property?
There are many assets in an estate that don’t need to go through probate. A probate court proceeding is typically unnecessary if the deceased person was married and owned almost everything jointly or did some planning to avoid probate. Once you identify everything outside of probate, the rest of the deceased’s assets are probably part of the probate estate. Here are some examples of non-probate property:
- Property with a named beneficiary, like life insurance policies, IRAs, 401(k)s, and pensions.
- Bank accounts with beneficiaries, if they have a payable on death designation.
- Property such as real estate, vehicles, cars, or boats if they have a transfer on death designation.
- Assets titled in the name of a trust or designating a trust as beneficiary.
- Property owned jointly with survivorship rights.
- Property held in a living trust.
- U.S. savings bonds registered in payable-on-death form.
- Co-owned U.S. savings bonds.
- Wages, salary, or commissions (up to a certain amount) due the deceased person.
- Property owned as tenants by the entirety with a spouse.
- Household goods and other items that go to immediate family members under state law.
Which Assets Go Through Probate?
Now that we know which assets are exempt from probate, let’s discuss which assets require probate. The deceased’s representative or attorney must list all probate assets with their values and then file the list with the probate court. This is the same as creating a list of assets for the will. Some of the assets will be easy to value, like bank accounts, while others might require an appraisal, like antiques or jewelry. The probate process will be much smoother if a will is created ahead of time, with a list of assets. Unlike a living will, which is also important, a final will and testament include legal directives and an inventory of assets.
States have different laws surrounding probate, which is essential to note. Probate is not required in some states if the estate’s value is below a certain amount. Some states even have a simplified probate procedure for smaller estates or when all the property is transferred to the surviving spouse. Sorting through accounts and property can be a very tedious job, and it’s not always easy to tell what will be subject to probate and what isn’t. Seek legal advice if you have questions surrounding property and probate court. Even when probate isn’t required, going through the whole process can have some advantages. Probate assets typically include:
- Real estate, vehicles, and other titled assets that are owned solely by the deceased person.
- A share of property owned as “tenants in common” with someone else.
- Personal possessions such as household items, including clothing, jewelry, and collections.
As you can see, the list of items subject to probate is a lot shorter than the non-probate property. It can still be a lot of items to catalog though, especially when you consider household items alone. When there are assets that require probate court proceedings, the will executor’s responsibility is to open the case in probate court and see it to the conclusion. When there is no will, or the will hasn’t named an executor, the probate court will appoint someone to serve. Either way, the person in charge can hire a lawyer to help with the proceedings and pay any fees to the lawyer using money from the estate.
The Probate Process
You might be wondering what the probate process looks like. In Minnesota, it’s a long list of steps. Having the help of a lawyer can make the process much smoother, as they will guide executors through every step of the process. If you have never been an executor before or don’t know where to start, seeking legal counsel is the best first step. Here is a look at the probate process in Minnesota:
- File proper documentation with the court to commence administration.
- Contact beneficiaries and heirs.
- Obtain tax ID for the estate.
- Open bank account for the estate.
- Inventory estate assets.
- Sell assets if necessary.
- File last income tax return of the deceased.
- Prepare federal and state income tax.
- Prepare fiduciary accounting.
- Distribute assets.
- Finalize probate through proper documentation.
Creating a detailed last will and testament will make the probate process a lot easier for your executor and beneficiaries. But if the deceased does not have a will, or there are disputes surrounding their assets, the probate court can settle these arguments. Knowing which assets will be subject to probate and which will not can help you make a detailed estate plan in the first place, or identify how you need to proceed through the probate process.Read More
Sometimes it may be necessary to file an order for protection or restraining order if you or your children become endangered. In Minnesota, there are two different types of orders for protection and harassment restraining orders. An experienced Minnesota attorney can help you determine which order to file to gain you the proper protection from an abuser or harasser. It can be difficult to know exactly which court order is correct for your situation, especially if you are involved in a family domestic incident or the victim of domestic abuse.
What is an Order for Protection?
An order of protection is a court order demanding the abuser stop any abuse. It is used in situations where there are allegations of an abusive relationship or domestic abuse, as defined by Minnesota law. Orders for protection prevent the alleged abuser, or respondent, from committing further domestic violence, living with the alleged victim, having custody or visiting minor children, and coming within a reasonable area surrounding the victim’s residence or workplace. Minnesota law defines domestic abuse as any of the following acts committed by a family or household member against another family or household member:
- Infliction of physical harm, bodily injury, or assault, such as hitting, kicking, slapping, pushing, stabbing, choking, burning.
- Infliction of fear of imminent physical harm, bodily injury, or assault, including threats of physical harm or assault.
- Terroristic threats, such as threats to commit a crime of violence, bomb threats, or showing a firearm.
- Acts of criminal sexual conduct, such as forced intercourse or forced sexual contact, or intercourse or any other form of sexual contact with a minor.
- Interference with an emergency call, including preventing, interrupting, or ending an emergency call.
A family or household member can be any of the following:
- Spouse or former spouse
- Persons involved in a significant romantic or sexual relationship
- Persons related by blood
- Persons living together or who have lived together in the past
- Parents and children
- Persons who have or had a child in common (born or in utero), regardless of whether they were living together or ever married
Types of Protection Orders
Orders of protection can be temporary or permanent orders, and there are different protocols for each type of order. Temporary orders for protection can be issued without the abuser present at the hearing, while long-term orders need both parties to attend a required hearing. Temporary or “ex parte” orders for protection are typically awarded to provide immediate safety to those in danger because of a domestic abuser. Full orders of protection offer even more protection but do require an official hearing at court.
Ex Parte Orders of Protection
Because courts recognize that domestic abuse can endanger lives, they will frequently award “ex parte” orders for protection, which means the respondent (alleged abuser) is not at the hearing when the order is issued. Temporary orders are used to provide immediate safety to family members in danger from a domestic abuser. In an ex parte order of protection, you will be granted the following protections:
- Ordering the abuser not to abuse you or your minor children.
- Ordering the abuser to be removed from the home that you share.
- Ordering the abuser to stay away from a reasonable area surrounding your home and place of work.
- Ordering the abuser not to contact you in person or by telephone, mail, email, electronic devices, or through a third party.
- Ordering any insurance coverage available to you currently remains, meaning the abuser cannot take you off their insurance plan if it’s through their work.
- Giving one of you possession or control of a pet kept by you, the abuser, or a child of you and ordering the abuser not to abuse the animal physically.
Full Orders of Protection
In some instances, a hearing is required to issue a full order of protection. This hearing might come about because the victim is seeking additional protection than what was granted originally through the ex parte order. In other instances, after an abuser is served with an ex parte order, they might request a hearing. If the petitioner (alleged victim) is requesting sole custody of minor children or child support, both parties must be present at the court hearing.
A full order of protection can last for up to two years, but you can also have the petition extended once the order expires if you need further protection. The judge can grant a full order for up to 50 years if the abuser has violated an existing or prior order for protection on two or more occasions or if you have been granted two or more orders for protection against the abuser. This ensures full protection without worrying about an expiration date. If there have been no violations after five years, an abuser can ask the judge to modify the order by proving there have been significant changes in the circumstances.
During the court hearing, both parties will have a chance to present evidence, testimony, and witnesses to prove why or why not the order should be issued. Understanding the different stages of domestic violence makes it easy to see why victims should want full protection from abusers. A full order of protection can grant them that and help the abuser get help through therapy or treatment. You can get the following protections as part of a full order of protection:
- All of the protections of an ex parte order.
- Temporary custody of your children or establishing temporary parenting time giving primary consideration to the safety of you and your children.
- Establish temporary child and spousal support.
- Provide counseling and other social services for you and the respondent if you are married or have children together.
- Order the abuser to participate in counseling or treatment.
- Award you temporary use and possession of shared property, such as a car.
- Order neither party to damage, sell, or get rid of property or use it as the basis for a loan.
- Order the abuser to pay restitution, such as your medical bills or lost income as a result of the abuse.
- Order the abuser not to possess firearms for the time the order is in effect.
- Instructs the abuser not to harass, stalk, or threaten you or engage in any other conduct that would put you in reasonable fear of injury.
- Order any other relief necessary to protect you and your children, including ordering law enforcement to accompany you home to get your belongings when necessary.
What is a Restraining Order?
Harassment restraining orders are used against a harasser, regardless of your relationship with him or her. It will order them to stop harassing you and have no contact with you. Restraining orders differ from orders of protection because domestic abuse does not necessarily have to be involved. Harassers can be someone you don’t know or are not related to but still wish for them to stay away from you because of harassment that has taken place. Temporary restraining orders can be issued without the harasser present in court. Final restraining orders can last up to two years but could be issued for 50 years if the harasser has additional violations or charges already against them.
Filing an Order For Protection or Restraining Order
Whether you are filing an order for protection or restraining order, don’t be afraid to get the help you and your children need. Domestic abuse advocates who are knowledgeable about the process, such as Violence Free Minnesota, can support you through all of the steps. An experienced attorney can also assist you through the process and make sure you have filed all the necessary paperwork. Judges typically err on the side of caution when issuing orders for protection and restraining orders, to ensure you and your family stay safe.Read More
The domestic violence statistics in the United States are disturbing. In Minnesota, domestic violence affects one in four women and is the leading cause of injury to women. It is hard to imagine that so many people, specifically women and children, have to live through cycles of domestic violence each day. Abusive relationships and violent partners can lead to domestic violence. Abuse is a learned behavior, and it can be very difficult for victims to break free from the neverending cycle of violence. Understanding the different stages of domestic violence can help recognize when to seek help and leave a volatile situation.
What Is Domestic Violence?
Domestic violence is any behavior intended to gain power and control over a partner, spouse, or intimate family member. The behavior does not have to be physically violent to be considered domestic violence. Minnesota law defines domestic abuse as “physical harm, bodily injury or assault, or the infliction of fear or imminent physical harm, bodily injury or assault, when done by a family or household member. Terroristic threats, criminal sexual conduct and interference with an emergency call are also forms of domestic abuse when they are committed by a family or household member.” The range of acts categorized as domestic abuse is vast, which is why it’s crucial to stay aware if you think you may be in danger.
How to Recognize Domestic Violence
As mentioned, domestic violence can occur in a multitude of ways. Different abuse types include physical, emotional, financial, digital, sexual abuse and coercion, and reproductive coercion. Recognizing domestic violence when it occurs is crucial to stopping the cycle and finding a way to escape an abusive relationship. Below are several examples of each type of abuse to be aware of the different ways domestic violence can occur. These lists are not extensive but give a broad idea as to what behaviors are considered abusive.
- Forbidding you from sleeping or eating
- Withholding prescriptions
- Driving recklessly or dangerously while you’re in the car
- Using weapons to threaten or hurt you
- Damaging property when angry
- Punching, slapping, kicking, or biting you
- Preventing you from seeking medical attention or calling the police
- Harming your children
- Forcing you to use drugs and alcohol
- Acting jealous or possessive
- Blaming you for any abuse
- Controlling your appearance with clothing, makeup, etc.
- Referring to you by the wrong pronouns
- Humiliating you
- Punishing you by withholding affection
- Isolating you from family and friends
- Accusing you of cheating
- Cheating on you then blaming you for their behavior
- Telling you that you’re lucky to be with them
- Threatening to cheat on you
- Always needing to know where you are
- Giving you an allowance
- Demanding receipts from purchases
- Preventing you from having or viewing a bank account
- Refusing to provide you with money for shared expenses
- Living with you but refusing to work or contribute to rent
- Stealing money from you
- Maxing out credit cards or refusing to pay your credit card bills
- Limiting the number of hours you can work
- Uses apps or social media to keep tabs on you
- Limits who you can connect with on social media
- Sends you unwanted or explicit pictures
- Demands explicit pictures or videos from you
- Looks through your phone frequently or without asking
- Regularly texts you to check up on you
- Insists on knowing your passwords
Sexual Abuse and Coercion
- Forcing you into having sex
- Involving other people against your will in sexual activities
- Pressuring you to do things you don’t want to
- Forcing you to dress a certain way
- Making you feel like you owe them
- Drugging you or giving you alcohol to loosen your inhibitions
- Making you feel threatened if you say no
- Demanding sex when you are sick, tired, or hurt
- Holding you down
- Hurting you with weapons during sex
- Removing protection during sex or refusing to use it
- Forcing you not to use birth control
- Withholding finances to purchase birth control
- Forcing you or preventing you from getting an abortion
- Monitoring your menstrual cycles
- Continually keeping you pregnant
- Sabotaging birth control methods
Stages of Domestic Violence
Domestic violence stages are considered a cycle because they can be ongoing if something doesn’t happen to stop the abusive behaviors. There are four stages in the cycle of domestic violence: tension, incident, reconciliation, and calm. If you’ve been in an abusive relationship before, you may already understand how this cycle works. Each stage has its own characteristics and warning signs, but you may not recognize you are caught in this cycle until after the fact. Understanding how it works is the first step in realizing you need to seek help to escape the abuse.
Before any violence or abuse occurs, there is usually a period of high anxiety where you feel like you have to be hyper-alert to your abusive partner’s needs. Abusers can lash out as a response to external stressors, like troubles at work, family issues, illness, or fatigue. You may feel like you have to provide extra physical or emotional support at this time while trying not to set your partner off.
The abuse or crisis phase is when the abuse occurs. Any of the examples of domestic violence above are included under the umbrella of abuse. Threats count as abuse, even if actual violence doesn’t happen. You may fear for yourself or your children in this phase. The abuser is attempting to regain power by controlling you, which never excuses their actions.
The period after abuse is referred to as reconciliation because the abuser will try to make amends. They may apologize for their actions and promise never to do them again. They often use gifts and kindness as a way to move past what just happened. This behavior may make you feel more closely bonded to them and lead you to think you have your relationship back.
After reconciliation, both parties might try and come up with an explanation for the abuse. You might think that your partner would never do anything like that again. They will show remorse and blame outside factors. Your abusive partner might even try to minimize the abuse or accuse you of provoking them.
Seeking help from a domestic violence situation can be a complicated decision. There are many reasons victims can’t “just leave” their abusive partner. You may be isolated, married with children, suffer from separation anxiety, depend on your partner financially, or have to deal with property fallout division. Also, leaving an abuser can be dangerous. If there is ever an emergency, call 911. You can also call the National Domestic Violence Hotline for crisis intervention and resources at 800-799-SAFE (800-799-7233).
Consider seeking help from your health care provider or a women’s shelter or crisis center. Create a safety plan with their help, then pack an emergency bag with items you’ll need when you leave. Remember critical personal papers, medications, money, extra clothes, and keys. Know where you’ll go and how you will get there. While making your plans, protect your location and communication. Clear browser history, use computers and phones cautiously, remove any GPS devices from vehicles, and change your passwords. When the time comes to leave, and you have escaped, seek professional counsel to remain safe and start healing from the abusive relationship.
Understanding Domestic Violence
Once you have a clear concept of the cycle of domestic violence, it’s easy to see how it occurs over and over before the victim can find a way to leave. Unfortunately, domestic violence is very common in dispute resolution cases. Abusive partners seek to control, and in doing that, they harm their partner and others in their way. After the abuse, periods of calm and reconciliation may persuade a victim to stay in an abusive relationship much longer than they should. Understanding how the different domestic violence stages play out can help victims recognize abuse when it’s happening and find a way to leave before it’s too late.Read More
No one starts a romantic relationship thinking their partner is abusive. In fact, abusive behavior can appear loving and affectionate at first, making it hard to tell whether or not a relationship will become abusive. Sadly, an abusive partner’s conduct usually comes from a need to assert dominance and control. What initially felt like love and affection quickly turns aggressive and dark. Abusers tend to be manipulative, so manipulative that they’re able to make you believe this dominant and controlling behavior comes from a good place.
If you suspect yourself or someone you know of being in an abusive relationship, you may wish to use the power of an attorney to address the situation with legal action and ensure physical safety. Let’s unpack abusive relationships, abuse types, red flags to look for, and questions to ask. If you feel that you are in immediate danger, please contact the Domestic Violence Hotline.
What is an Abusive Relationship?
Domestic abuse (also known as domestic violence, dating abuse, relationship abuse, or intimate partner violence) is defined as a pattern of behaviors a partner uses to assert power and control over the other partner in an intimate relationship.
A person from any background has the potential to be a victim (or perpetrator) of domestic abuse. The patterns of behavior carried out by an abuser can include physical harm, intimidation, manipulation, physical violence, threats, emotional abuse, or any other action that forces a person into unwanted experiences.
Unfortunately, abusers can be so controlling and manipulative that their partners can’t see what’s really going on, or they’re too afraid to. Abusive relationships are traumatic and can completely distort a victim’s concept of a healthy and loving relationship.
Types of Abuse
The term abuse encapsulates so much more than physical harm. It comes in many different forms that are all terrifying in their own right. To understand what an abusive relationship might look like, you’ve got to understand the various forms of abuse. If you notice any of these behaviors in your or a loved one’s relationship, that is a red flag.
- Emotional Abuse: An abusive partner may reject calling their partner by their given name and instead choose to call them hurtful and demeaning words. Emotional abuse includes public humiliation, threats, manipulation, blaming, and other actions intended to confuse and trouble a victim.
- Physical Abuse: Any violent acts directed towards the victim. This includes hitting, slapping, punching, choking, burning, kicking, painful twisting or pulling, and other forms of physical violence.
- Economic Abuse: Abusers might withhold or command intense control over money to manipulate their partners into staying. This includes preventing their partner from purchasing things that bring them joy or may help them get out of the relationship and keeping their partner from seeking legal advice. Remember that many legal offices like Cline Jensen, PLLC offer free consultations that can at least get you pointed in the right direction to get away from your abuser.
- Verbal Abuse: Some abusers constantly criticize their partner’s appearance or skills, call them names, yell, or scream. They might threaten their partner, the children, or the pets.
- Sexual Abuse: Unwanted sexual acts, including rape, forced viewing of pornography, forced posing for pornographic material, and forced non-consensual sex with others are just some ways that a victim can experience sexual abuse.
- Isolation: Abusers control their victims through forced isolation. They may prevent their partner from asking for advice, financial assistance, or other forms of help from friends and family. This forced isolation is also a means of curbing the victim’s access to domestic violence resources or legal advice.
- Stalking: If an abuser follows their victim to work, the store, the gym, appointments, visits with family or friends before, during, or after a relationship, this is called stalking, and it is a form of terrorism. Stalking prevents the victim from feeling safe anywhere.
Red Flags to Look Out for
Besides keeping an eye out for different types of abuse, there are various other red flags to look for. If you notice any of the following signs, reach out for help right away.
Red Flags for Your Partner’s Behavior
- Your partner makes you feel afraid to break up with them
- Your partner doesn’t let you make decisions on your own or prevents you from talking about certain subjects
- Your partner embarrasses you or puts you down
- Your partner is often angry to the point of physical, verbal, or emotional violence towards you, your children, or your pets.
- Your partner forces you to check-in and make them aware of your location at all times
- Your partner controls who you see and what you do
- Your partner keeps you away from your family and friends
- Your partner takes your money to keep you from doing things
- Your partner blames the abuse on you
- Your partner pressures you into doing something you don’t want to (drugs, sex, etc.)
Red Flags for Your Behavior
- You feel like you can’t trust your thoughts and instincts
- You find yourself doing things you don’t want to or that don’t align with who you are
- You often have to defend your partner to your friends and family
- You cry a lot, feel depressed, or unhappy
- You worry about how to keep your partner happy
- You find that the abuse started small but has been getting worse over time
- You think everything will be okay if you just try harder and love your partner more
Do You Need Help?
If any of these red flags resonate with you and make you question your relationship or a loved one’s relationship, take action now. Although it can be difficult to tell what constitutes a red flag and what doesn’t, listen to your intuition. If something feels wrong, it probably is.
If you or a loved one needs help getting out of an abusive relationship, in addition to calling the Domestic Violence Hotline, you can call the police, file a restraining order, or contact an attorney at Cline Jensen, PLLC for advice on legal action. We offer free consultations and, should you wish to take legal action, we promise to work tirelessly and tactfully to help you leave your current trauma behind and start a new, safe life.
Many couples that have chosen to pursue divorce expect a simple process that won’t take much time. Unfortunately, when it comes to the division of marital estates, a divorce can quickly turn into a messy situation. Couples are encouraged to become familiar with the different types of marital property and how property is divided from state to state. Identifying whether your divorce will be considered a high asset case is also beneficial, so you’re prepared for whatever situation comes your way. Additionally, the assigned judge will also determine whether spousal maintenance is necessary. Divorce can be tricky and time-consuming, but hiring an experienced family law attorney will prepare you for success.
The Difference Between Marital and Non-Marital Property Division
Divorce is already stressful and emotional for both spouses, and property division can make it much more difficult. Whether the divorce is mutual or is one spouse’s choice, it’s incredibly important for each party to familiarize themselves with the different property division types and residing state guidelines.
When a married couple decides to divorce, any property, debts, and assets are categorized as marital property unless determined otherwise. The state of Minnesota follows equitable distribution, which is the fair distribution of all marital property that best benefits each spouse. These guidelines don’t always mean each spouse will receive the same amount of property, however. In some instances, one spouse may receive monetary contributions equal to the other spouse’s acquired property. The court system reviews several factors to determine how marital property will be divided from the length of marriage and occupations to estate information and spousal contributions as a homemaker. There are many more factors a judge will review as well, meaning it’s imperative to become familiar with all aspects so you can adequately prepare for court.
In Minnesota, non-marital property is not eligible for equitable distribution. All property acquired by each spouse before, during, or after the marriage is categorized as non-marital property. If a spouse wishes to dispute specific marital properties that should be considered non-marital property, the individual must prove that the designated property is non-marital. The evidence can consist of bank transactions, receipts, and more. Below are a few examples of non-marital property:
- Property owned before marriage
- Property excluded by a valid prenuptial agreement
- Property acquired through exchange of other non-marital property
Breaking Down Spousal Maintenance in Minnesota
Every state differs in how spousal maintenance is determined, and in Minnesota, many factors are reviewed to establish equitable distribution. Spousal maintenance is granted to a spouse to preserve their quality of life and give them time to individually establish themselves after a divorce. Each spouse must become familiar with the factors the court considers when granting spousal maintenance as the decision is ultimately out of your control.
What Kind of Spousal Maintenance Have You Been Awarded?
Upon reviewing various factors covered below, the judge will determine whether spousal maintenance should be awarded. There are two types of spousal maintenance available for divorcing couples, temporary and permanent. Temporary spousal maintenance is often granted for shorter marriages and is a limited-time award. This type of spousal maintenance is usually awarded as a rehabilitation opportunity for one spouse to finesse their skills and establish income for the new way of life. Permanent spousal maintenance is not as standard and is usually granted for longer marriages. This type of spousal maintenance is not permanent but will occur until a spouse dies, remarries, or the court orders otherwise.
Factors Under Consideration
Many factors within a marriage directly affect the type of spousal maintenance a judge awards, if any. Keep in mind; every divorce case is unique, meaning it’s difficult to determine how your case will turn out compared to others. The state of Minnesota strives to reach a decision based on each party’s fairness and doesn’t consider marital misconduct. Below are a few examples of what a judge assigned to your case will take under consideration:
- Length of marriage
- Financial resources
- Standard of living
- Loss of earnings
- Retirement benefits
- Physical and emotional health
Individual factors and events can cause spousal maintenance awards to change, from clerical errors in payments and fraud to falsified information and hidden assets. Along with these, if one spouse loses a job or has changes in health, the judge will also review these circumstances and possibly make the decision to reform a spousal maintenance order.
Essential Details of Property Division
Locations throughout the United States follow different property division guidelines, meaning it’s vital for you to become familiar with community property and equitable distribution. There are many kinds of divorce both your attorney and the court system may determine as best for your unique situation. If your divorce is civil, there is an opportunity to navigate property division outside of court. Regardless, these are three crucial property division details to consider when first initiating your divorce.
Navigating Divorce Types
Divorce comes in many forms, and becoming familiar with each type will help both you and your spouse navigate family law should you decide to pursue a divorce. Each divorce case differs, making it extremely important for each party to have guidance from an experienced family law attorney. Below are the different types of divorce that are pursued by the court system today:
- Fault and no-fault
Location of Residence
The state in which both parties reside affects the type of property division. Locations throughout the United States follow different guidelines on how the court system determines property division in a divorce. These guidelines consist of community property and equitable distribution. Community property is divided between spouses, while each spouse has the opportunity to keep their separate property. Equitable distribution occurs when a court system requires all assets and earnings acquired during a divorce as marital property, meaning all items must be divided equitably. Keep in mind; this doesn’t mean the division will be equal, but fair in the sense that each spouse receives equal monetary and physical property contributions.
Solo Property Division With Your Spouse
If your divorce is a mutual decision and both spouses can remain civil, dividing property on your own is possible. Handling divorce and property division outside of court can be extremely cost-effective and is relatively simple to navigate. To get started on solo property division without court guidance, follow these simple steps:
- Create a list of property
- Establish value for each item
- Select an owner
- Have a judge grant approval
What About a High Asset Divorce?
Couples with a massive estate will pursue a high asset divorce, which can be extraordinarily complex and often emotionally taxing and stressful. Regardless of your situation, a dedicated family law attorney experienced in high asset divorces will adequately represent you with your best interest in mind.
What to Expect
During a high asset divorce, many factors are determined that can be life changing. Credible information is one of the best tools each spouse can utilize and benefit from. Regardless of the underlying factors that caused the divorce, becoming familiar with expectations and elements reviewed is highly recommended. A judge that is reviewing a high asset divorce case will likely determine the following:
- Marital property division
- Spousal maintenance
- Child custody
- Child support
High asset divorces require extreme review and guidance in the financial sector as there is commonly an abundance of earnings and items of high monetary value. It’s encouraged for each spouse to compile essential financial documents early on, so documentation isn’t misplaced during the divorce process. Placing all of your finances and financial documentation in one secure location will not only give you an idea of what type of financial situation you could be dealing with but will also adequately prepare you for the upcoming work with your attorney.
Within a high asset divorce, here are both marital and non-marital assets. Many couples involved in a high asset marriage create a prenuptial agreement early on to establish what assets go to which individual. Your family law attorney will be prepared to navigate the relationship and divide property under equitable distribution guidelines. Out of state or international assets are also common during a high asset divorce, but experts are commonly brought in to sort out these matters.
A married couple who chooses to pursue a divorce may not always agree on several factors from getting divorced in general to the terms of the divorce. A contested divorce or one where the parties cannot agree commonly occurs in a high asset divorce. The state of marriage, relationship between two individuals, and cause of divorce each play into whether a divorce is contested or uncontested. A high asset divorce that is contested can be extremely time consuming and will likely result in a valuation appraiser reviewing each asset’s worth and identifying any assets that may have been brushed aside.
Contact an Experienced Family Law Attorney Today
From familiarizing yourself with the various types of marital property and property division to determining the needs for a high asset divorce and spousal maintenance, there are many steps couples going through a divorce can take to prepare. Each divorce differs in the amount of time spent, and each spouse’s individual needs, meaning no divorce is the same. Hiring an experienced family law attorney can set you up for success as they will provide outstanding guidance and support for the duration of your divorce case.Read More
You’ve probably heard of spousal maintenance before, and if not, you’ve certainly heard of alimony. Well, they’re one and the same, but here in Minnesota — there are some slight differences in how spousal maintenance is handled and awarded following a divorce.
Spousal maintenance exists to preserve the lower-earning spouse’s standard of living, and you’ll typically hear about these awards following high profile divorce cases. However, spousal maintenance isn’t just for the rich and famous — as many divorcing couples may find themselves in conflict about whether or not these awards should be given or received.
In a perfect world, divorcing couples would sit down and discuss what is fair regarding spousal maintenance. They would come to an agreement regarding the amount and the length of these awards instead of taking it to court. Unfortunately, that’s not how it typically goes. Divorcing couples that cannot amicably agree to spousal maintenance time frames and amounts — end up in court. Here, it becomes both expensive and uncertain, as it’s left in a judge’s hands.
Compared to other legal struggles involved in a divorce, such as child support settlements, where there’s a clear cut formula — spousal maintenance is up to the court. While there’s no formula, there are factors surrounding a couple that illustrates trends in how the courts will award spousal maintenance.
What Factors Affect a Judge’s Decision?
The judicial discretion that surrounds spousal maintenance means that there are certain factors that have a significant impact on the success or failure of a request.
These awards can be either temporary or permanent.
Now, before diving into the various differences between a temporary and permanent spousal maintenance reward, let’s explore the factors that can affect a judge’s decision.
Every case is unique, and as we mentioned, there is no one size fits all equation or solution that determiners spousal maintenance. In Minnesota, the courts attempt to make a decision based on fairness for both parties involved and do not take marital misconduct into consideration.
Well, at the top of the list of factors is the length of the marriage and the income of each party. However, these aren’t the only stipulations that play a role. Here are some of the most influential factors that will determine whether or not spousal maintenance is rewarded — along with its temporary or permanent status.
Obviously, income disparity between spouses can drastically affect whether or not spousal maintenance is rewarded. Spousal dynamics are in play here, as one partner may work while the other takes care of the home. Therefore, income may be fruitful for one, but only possible due to the sacrifices made by the other.
Assets and marital property can have a significant impact on the type of spousal maintenance and the amount rewarded. So, it’s important to know the size of varying marital estates and how whether or not it’s marital or non-marital property. The status of the assets is crucial and can play a big role when it comes to how the court decides spousal maintenance.
It may come as a surprise, but the age of each spouse can also affect a judge’s decision. The ability to work or acquire the job skills necessary for obtaining income is important.
Standard of Living
While the standard of living may play a bigger role in massive estate divorce cases, it’s still possible that the average spousal maintenance case may be affected by this factor.
Job history, work experience, and education all contribute to skills that make career opportunities and income possible. So, it’s not difficult to see why these factors play their part in how the courts determine spousal maintenance. If one spouse sacrificed schooling to raise children, this might be grounds for spousal maintenance awards. Financial stability arises from a foundation, and a judge will take this into consideration when considering awards.
In addition to what we’ve already covered, loss of earnings, retirement benefits, and other financial opportunities that one spouse may have declined or put on hold can also affect spousal maintenance awards.
All of these factors play a role, and while they’re not the entirety of the decision-making process — they do have a significant impact on the spousal maintenance decision. Even physical and emotional health may be looked into as well.
While it would be a lot cheaper and more efficient for spouses to come to a shared conclusion — these cases are typically highly contested. It’s for this very reason that having an experienced family law professional by your side is so important during this process.
Temporary Vs. Permanent Spousal Maintenance
When a judge examines all of the factors we mentioned above, the decision to award spousal maintenance isn’t the only determination. There’s also the type of spousal maintenance too. In Minnesota, a judge will decide whether or not a temporary or permanent model of spousal maintenance suits a particular divorcing couple.
Temporary Spousal Maintenance
Depending on a wide range of circumstances, a temporary spousal maintenance order may be the right fit. Shorter marriages may be grounds for a temporary spousal maintenance decision. Moreover, if one spouse is on their way to obtaining certain job skills, in school, or attempting to gain employment, temporary spousal maintenance may be given. The limited-time award serves as a sort of rehabilitative period where one spouse can get back on their feet and establish liveable income.
Permanent Spousal Maintenance
A judge may decide that permanent spousal maintenance is appropriate. However, it’s not a very common result. Longer marriages (20 years or more) with a very large gap between incomes are typically a candidate.
It should be noted that permanent spousal maintenance is difficult to obtain — but not impossible with the right legal counsel. Permanent does not mean forever, as the order will end once a spouse dies, remarries, or a court order in the future says otherwise.
Can Spousal Maintenance Orders Change?
Yes, there are several stipulations that may cause spousal maintenance rewards to change. Whether it’s clerical errors in payments, fraud, falsified information, hidden assets, or an over-turned order — spousal maintenance can be affected by certain conditions.
New evidence that affects a case or emerging financial situations such as job loss could also play a role. Health changes or even remarriages could also affect spousal maintenance orders.
Here in Minnesota, spousal maintenance cannot be affected by who is at fault when it comes to divorce, even with adultery. We’re what is commonly known as a “no-fault state.” So, a spouse cannot attempt to seek rewards based on the cause of the divorce.
Whether you’re attempting to obtain spousal maintenance or you’re trying to contest it, you’ll need an experienced family law attorney by your side. It can be an extremely stressful and time-consuming endeavor, but the right advocate and legal counsel can make a real impact.Read More
Divorce is an emotionally charged and difficult process, and it only becomes more complex when property division is added into the equation. One of the best ways for individuals to protect their rights is to become knowledgable and well-informed regarding their responsibilities — along with what they are entitled to during property division.
It’s not uncommon for divorce proceedings to be lengthy and stressful endeavors. It’s during these troubling times that many spouses find themselves missing crucial pieces of information about the nuances of property division, and how they can ensure that their rights are being taken care of.
How Minnesota Handles Property Division
One of the more misunderstood aspects of property division is how different states actually have varying ways in which they manage the process.
Minnesota is considered an equitable distribution state. A judge will consider a wide variety of factors that may impact how to distribute property amongst the parties equally. Some of these factors include (but are not limited to):
- The length of the marriage
- Prior marriages
- Personal & financial circumstances of each spouse
- Earning capacity
- Both spouses age
- Contributions to marital property
Essentially, all property that is acquired during a marriage is considered marital property and, therefore, can be equally divided between both parties. However, non-marital property can still be owned by an individual even if it’s acquired while the marriage is still intact. Non-marital property is not a part of the property division equation.
Minnesota does not offer both parties an automatic split down the middle route, where marital assets are divided 50/50 between spouses. Instead, the court will use the factors mentioned above, such as the length of the marriage, earning capacity, etc. to determine what is an equitable division of property.
While Minnesota and other states adopted the equitable distribution as their property division methodology, some states utilize community property laws to regulate property division.
Currently, there are nine states in the U.S. that are considered community property states.
- New Mexico
In these states, all property that is acquired during a marriage is considered marital property, which means that it can be divided between spouses during a divorce. Because both individuals are considered one singular economic unit, each spouse is entitled to exactly half of the marital assets during a dissolution.
The Ins and Outs of Marital Property
Marital property can seem like a complicated situation on the surface, but once an individual understands the bottom line that separates marital and non-marital property, they are able to make much more informed decisions during a divorce.
For couples in Minnesota who are going through the difficult process of a marriage dissolution — marital property is of the utmost concern. However, there may be some grey area surrounding what is marital property and what is non-marital property. We’re here to provide some much-needed clarity regarding their differences.
What is Marital Property?
Before the valuation stage of a divorce, any property, debts, or assets that were obtained during the marriage are considered marital property. The valuation stage usually takes place during the “Initial Case Management Conference” and is put in place to mark the separation of marital property.
Any property, assets, or debts are then considered eligible for property division here in Minnesota. There are certainly some areas that may need further discussion, such as an inheritance, but that is typically taken care of during the designated valuation stage. An experienced family law and divorce attorney will help create some transparency and equitable division.
If a spouse wants to dispute certain properties that were acquired during the marriage and claim them as non-marital, they may do so. However, it’s up to whichever spouse is making these claims to provide proof that the designated property is, in fact, non-marital.
Because Minnesota only divides marital assets, we often get questions about how the courts make their decision. There are a lot of factors that can affect marital property division, including:
- Marriage length
- Any prior marriages
- Sources and amount of income
- Health conditions
- Estate information
- Liabilities of each spouse
- Futura capital asset opportunities
- Spouse contributions as a homemaker
- Value contributions of each spouse (acquisition, appreciation, depreciation, and preservation of marital property value)
Each one of these areas can affect the division of marital property, and it’s important for spouses to be aware of how these factors can impact the outcome of a divorce.
What is Non-Marital Property?
Non-marital property is not eligible for division in the state of Minnesota. But, what is non-marital property?
Any and all property that was acquired either before, during, or after the marriage is considered non-marital property. However, these are not the only stipulations that designate property as non-marital.
Gifts, bequests, or inheritances received from a third party to only one spouse is non-marital property. Also, property, assets, or debts that were acquired after the valuation date are non-marital by nature and are not subject to division. The same can be said for property, assets, or debts that are designated as a part of a valid antenuptial agreement as non-marital.
The Home and its Complications
Some property can be a little complicated, especially the home. There are certain issues that can arise when dealing with the homestead in that it is not uncommon for one spouse to have owned the property prior to getting married.
The waters can become muddy because, after the marriage, both spouses live in that home and create marital value within the same location and property. So, when a marriage dissolution occurs, the home can become both marital and non-marital and requires specialized consideration during the property division stage.
This is where the Schmitz Formula comes into play, and it’s a technical way in which the courts manage certain complications regarding the homestead and property division.
How Cline Jensen, PLLC. Can Help
Finding experienced legal counsel during a divorce can make a world of difference in protecting a spouse’s rights and ensuring fair and equitable property division. Understanding the differences between non-marital and marital property is an important step for couples in Minnesota, where equitable distribution determines their future.
Here at Cline Jensen, PLLC., we’ve guided numerous spouses through the difficult property division process, and we have satisfied testimonials to back it up.
A divorce is an emotionally taxing experience, regardless of the size of the estate. However, high asset divorce settlements can be an especially complex process, involving more financial assets and complications that require experienced legal support.
With a massive estate, there is so much more at stake. It’s not uncommon for these more significant estate divorce settlements to be a messy affair. However, it doesn’t always have to be this way. A dedicated family law attorney with experience in high asset divorce settlements can help mitigate issues and alleviate some stress. A trusted attorney can protect your interests and secure your future, keeping your informed about your rights and advocating for you every step of the way.
Get Your Finances in Order
One of the most complex areas of a high asset divorce is the financial web that needs to be sorted out. Locating all of the essential financial documents before the divorce begins can give you a head start. These documents need to be protected because they can provide substantial proof of what is considered marital vs. non-marital property.
Once a divorce is underway, the emotional toll can be difficult to navigate. Also, belongings get shifted around, and documents may be accidentally (or in some cases, purposely) divided, which means crucial financial documents may be hard to find. Getting your finances in order before the divorce process begins can be a huge lifesaver.
Also, having all of your finances and financial documentation in one secure location can paint a picture of what type of financial situation you may be dealing with. High asset divorce settlements deal with a lot of assets, and some may be forgotten until it’s too late. If you don’t want any surprises popping up during the property division stages, it’s smart to locate and secure these financial documents early.
What to Expect During a High Asset Divorce
One of the best tools at a spouse’s disposal during a high asset divorce is information. Knowledge about what to expect and which factors may affect one’s future is essential in any divorce but is especially important during a high asset divorce with a large estate.
Some key elements of a high asset divorce include division of marital property and spousal maintenance (also known as alimony). If there are children involved, there will certainly be child custody, visitation, and child support considerations that will need to be managed with care and attention.
A Deeper Look at Finances
Assets have various statuses during a divorce, and understanding which falls under a specific category is important when handling a high asset divorce. Marital assets (also known as community assets) are those that have been earned, acquired, or obtained during the marriage and are subject to division. Prenuptial agreements may change these stipulations up slightly, but typically, these marital assets are divided according to equitable distribution.
Equitable distribution means that the courts look at a wide variety of factors that contribute to the state of the marriage and then divide marital property equally between the spouses.
Separate assets, or those that are considered non-marital, will not be split between the spouses upon a divorce. These assets can include:
- Property owned before the marriage
- Property that has been purchased under a single spouse’s name, purchased to keep separate, or separated in writing
There are are a lot of assets that fall into a grey area, especially in massive estate situations. Non-marital assets end up combined with marital ones, and the complexities only seem to get larger and larger. An experienced divorce attorney can help trace non-marital assets that may have been commingled marital assets, which is another reason why locating documentation early on is so important.
Out of state or international assets are also fairly common during high asset divorce. Foreign assets or those that are located out-of-state will need experts brought in to deal with. Sound legal counsel and early intervention with these assets are crucial.
Likelihood of a Contested Divorce
Depending on the state of the marriage, cause of the eventual divorce, and the relationship between the two spouses — the probability of a contested divorce is much higher with larger estates.
This is primarily because spouses are in a much better financial position to spend the money to contest. Also, the money spent contesting certain assets may pale in comparison to the reward of winning a certain set of assets. So, if the asset rewards are higher than the price of the divorce, you can expect to see a contested divorce.
Valuation appraisers will likely be brought in to determine the value of the assets being split up, especially in larger estates where expensive assets are everywhere. Each spouse will have their own independent valuation expert that will determine an asset’s worth, along with helping identify assets that may be overlooked or forgotten.
During a contested divorce, the most costly asset is time. These proceedings can be drawn out for an unnecessary length of time, especially when financial paperwork isn’t located early on — or is hidden from the other spouse. Not only does this cost both parties more than they need to spend during the divorce, but it can also have consequences in court.
It’s not unlikely that spousal maintenance may be part of the equation during a high asset divorce. However, it can be far more complicated than a smaller estate. Uncovering the financial complexities of a massive estate can breed contention amongst the parties and also be difficult to do.
As we mentioned, parties may hide financial documentation from their spouses before or during a divorce. They may also hide bank accounts, assets, or even property from their significant other. During a divorce, these assets may be uncovered and may drastically impact spousal maintenance proceedings.
Find an Attorney You Can Trust
High asset divorces are a difficult endeavor and require veteran divorce attorneys that can advocate for and support your interests. The messy nature of high asset divorce cases means that you need an attorney that you can trust and who understands the financial complexities of a massive estate divorce.
Do your research and make sure that your attorney has a longstanding history of success in family law cases, especially with complicated estate divorce settlements.Read More